Proportionallity or Not? Judicial Review of Social Rights Limitations

This article takes on the question whether proportionality analysis should be (and whether it indeed is) employed in the realm of fundamental social rights. It is based on a presumption that proportionality analysis in its traditional form should not a priori be considered an appropriate tool for assessment of all fundamental rights’ limitations. This problem is first addressed from the theoretical perspective. Hence, I first defined some general criteria that could justify a rejection or a modification of the proportionality analysis in the realm of fundamental social rights. Based on these criteria, the article goes on to analyze the case-law of the Czech and Latvian constitutional courts. The Czech constitutional court explicitly refused to apply proportionality analysis with when assessing social rights’ limitations; it based the refusal mainly on the constitutional text and – to certain extent – on the separation of powers principle (connected with an acknowledgment of the legislator’s discretion). Its Latvian counterpart, on the other hand, employs proportionality analysis even with respect to fundamental social rights. The author argues that, generally speaking, the Czech approach is to be followed, whereas the Latvian one necessarily raises some issues. On a more concrete level, however, it is obvious that the case-law of the Czech constitutional court is full of inconsistencies that make it difficult to praise its approach altogether.